Tuesday, June 30, 2015

No Matter What They Take From Me

by Michael Dorf

My latest Verdict column describes the various forms that resistance to the Supreme Court's same-sex marriage ruling is likely to take. I'll let the column speak for itself on that subject because a landmark case often raises many issues. Accordingly, in this post I'll address an issue raised by Justice Thomas's dissent--one I did not discuss in my prior critique of the dissents in Obergefell.

Responding to Justice Kennedy's repeated invocation of the petitioners' right to equal dignity, Justice Thomas writes in dissent:

Perhaps recognizing that these cases do not actually
involve liberty as it has been understood, the majority
goes to great lengths to assert that its decision will advance
the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the
Constitution contains no “dignity” Clause, and even if it
did, the government would be incapable of bestowing
dignity.

Human dignity has long been understood in this country
to be innate. . . . The corollary of that principle is that human dignity
cannot be taken away by the government. Slaves did not
lose their dignity (any more than they lost their humanity)
because the government allowed them to be enslaved.
Those held in internment camps did not lose their dignity
because the government confined them. And those denied
governmental benefits certainly do not lose their dignity
because the government denies them those benefits. The
government cannot bestow dignity, and it cannot take it
away.

Let's take this one step at a time.

Justice Thomas is of course correct that the Constitution contains no dignity Clause but he appears to have forgotten that he previously joined opinions stating that failure to respect the sovereign immunity of the states is inconsistent with their dignity. Indeed, he authored one such opinion--Federal Maritime Comm'n v. South Carolina Ports Authority--that begins its substantive analysis with the following: "The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." His opinion invokes "dignity" or condemns "indignity" seven times.

Wait, what? Not only is there no "dignity" Clause that protects states; there isn't even a state sovereign immunity Clause. True, there is an Eleventh Amendment that, by its terms, denies federal courts (not administrative agencies as in FMC v. SCPA) the power to hear suits by citizens of one state against another state, but the Court, in opinions enthusiastically joined or authored by Justice Thomas, has not relied on the Eleventh Amendment as the basis of the broad principle of sovereign immunity that it finds in the Constitution, and sensibly not, given the Court's willingness to find sovereign immunity for states sued by their own citizens. The dignity of the states is a judicial construct used to explain a judicial doctrine that implements a value that is not expressly found in any constitutional text.

To be clear, I think that in principle these sorts of inferences can be justified but Justice Thomas--when denying rights to people who aren't wielding guns--thinks that they're just so much jiggery pokery. Justice Thomas thinks it's his judicial duty to infer a constitutional command to protect the dignity of states but that finding protection for the dignity of natural persons in the Due Process Clause and Equal Protection Clauses is, in his view, judicial usurpation.

What's more, apparently dignity functions very differently for states and natural persons. As the sovereign immunity cases make clear, Justice Thomas thinks that the dignity of states must be protected by judicially enforceable rules. By contrast, the dignity of persons is inherent and can survive any--shall we say--indignity. Thus judicially enforceable rules to protect personal dignity are foolish or worse.

But why? In FMC v. SCPA Justice Thomas writes as though he thinks that, like natural persons, states pre-exist the federal government, and indeed, elsewhere he has said exactly that. If both states and natural persons have inherent dignity, as Justice Thomas thinks, and if states are therefore entitled to judicial protection against actions by the government that are inconsistent with that dignity, why aren't individuals also entitled to such protection?

In light of his views about states, Justice Thomas is hypocritical to criticize dignity of persons for its atextuality. But at least that would be a coherent argument coming from someone else. Justice Thomas's conceptual claim that rights can't protect dignity because dignity is inherent is just a mess.

The very first substantive provision of the German Constitution protects human dignity. The Preamble to the Canadian Bill of Rights invokes "the dignity and worth of the human person" in its first sentence. Israel lacks a full-blown constitution but one of its very few basic laws protects, you guessed it, human dignity. The Universal Declaration of Human Rights, which serves as a model for national bills of rights throughout the world, repeatedly invokes dignity as a value for interpreting other rights and as an interest to be protected. These documents all treat human dignity as inherent but nonetheless entitled to protection. Does Justice Thomas think that these and other documents--and the global jurisprudence they have spawned protecting dignity--all rest on a conceptual error?

Moreover, Justice Thomas's examples make no sense on their own terms. Let's grant that nothing the government does can rob a person of his dignity. It surely does not follow that the government should be allowed to act in ways that rest on the premise that a person lacks dignity--as by enslaving or interning that person in a camp. What could Justice Thomas possibly mean by citing these examples? That slavery and internment of Japanese Americans during World War II were unproblematic because the enslaved and the imprisoned retained their dignity?

If Justice Thomas wants to say that denying a class of historically disadvantaged people the right to marry treats them as persons with full dignity, he should say that. If he wants to say that gays and lesbians don't deserve to be treated as persons with dignity, he should say that. The first statement would be self-evidently wrong and the second would be monstrous, but at least we would know what point he was trying to make.

Reading Justice Thomas extremely charitably, I suppose he might be trying to say that the concept of dignity doesn't aid in the functional analysis, because to know whether denial of some freedom is consistent with dignity, then one must have some account of the value (or if one is more historically minded, the historical manifestations) of the particular freedom. I think I could even agree with that claim (but not the prior parenthetical alternative), at least in the American context, where we lack a fully developed set of sub-concepts to implement the notion of dignity.

5 comments:

Mike: I think you're confusing the existence of a right with the purpose of a right. CT's point in Obergefell is that there's no free-standing right to "dignity," and that denial of ssm isn't a deprivation of the right to "liberty" as that term was originally and traditionally understood. Whereas, in FMC, his point was that the Constitution was originally and traditionally understood not to abrogate the pre-existing right of "state sovereign immunity" (as confirmed by the public's prompt rebuke of Chisolm), and that right exists (among other reasons) to protect state dignity. In other words, in FMC, he was interpreting a historically grounded constitutional right in light of one of its purposes; whereas in Obergefell, he was criticizing the majority for abstracting from a constitutional right to one of its purposes in order to enforce that purpose in a way that contradicted the historical limitations on the right itself.

This is no different, for example, from arguing that the 4A's terms are properly interpreted in light of the "privacy" interests that motivated them, but that "privacy" alone can't justify either contradicting the original understanding of the 4A or inventing unenumerated privacy rights that lack any grounding in history or tradition.

You of course will disagree with CT's premises and conclusions about these various issues, but I don't think it's right to say that he is being internally inconsistent.

Last night Larry Wilmore on his The Nightly Show addressed the "dignity" of slaves, pointing out how a slave seeking to retain his dignity was treated. Also, keep in mind the Constitution's fugitive slave clause and especially how the 1850 Act tightened loopholes in the earlier Act. And consider the Jim Crow laws' impacts on dignity of former slaves and their children, etc, with low-tech lynchings.

Related to your Verdict article, suppose a police officer saw a Christian kill a Muslim, and decides to let the Christian by as he tried to escape because of religious belief. But the officer's partner intercedes and arrests the assailant. In this example, nobody's fundamental rights are denied (at least not directly), so in a way you could say the negligent officer exercised a religious belief without individualized harm, unlike the abortion example (where a nurse refuses, for example).

Obviously, this example wouldn't stand, but I think it touches on a larger question about religious protest while acting as an agent of the state. Perhaps the answer here is that enforcing the law is the job description itself, so the officer could be let go. Similarly, I suppose a clinic that only performs abortions could fire someone who refused on religious grounds to carry out the work.

Regarding the first comment ... he first says that "there is no dignity clause" and then (as a separate matter) says that dignity is innate & we only protect it from government action. Dignity as something that furthers something enumerated (or an overall principle like federalism) answers the first. As to the second, government and others can demean dignity. There were traditionally "dignity harms" and reputation was a very important thing there in the Founding Era. Libel and slander laws is but one way the government protects, advances, dignity there.

The whole due process issue was dealt with separately. Two basic things there. The "freedom from physical restraint" limit was rejected clearly by the Supreme Court at the very least by the 1890s & "liberty" with some research can be shown to cover more before then. Usual law office history. Two, marriage traditionally provided a range of privileges and immunities (e.g., Blackstone put it in a section overall involving the "rights of persons") that involved freedom from physical restraint (e.g., right to cohabit) and property rights in a range of ways. Even today, all of these things are not provided to the unmarried. Spousal immunity is an obvious case.

ETA: The dignity discussion goes beyond the right to marry, underlining that this is not just an offshoot of the Due Process Clause discussion. Equal protection of law itself promotes the equal dignity of persons. Likewise, government benefits can promote dignity, such as helping the economically or physically challenged. Such programs would have to be carried out evenhandedly & marriage in various ways can help both.